dismissed EB-1C Case: Teeth Whitening

U.S. Citizenship 
and Immigration 
Services 
MATTER OF X-1- LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 8, 2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a "specialized services" business, seeks to permanently employ the Beneficiary as its 
"function manager'' under the first preference immigrant classitication for multinational executives 
or managers. See Immigration and Nationality Act (the Act) section 203(b)(l )(C), 8 U.S.C. 
§ 1153(b)(I)(C). This classification allows a U.S. employer to pem1anently transfer a qualitied foreign 
employee to the United States to work in an executive or managerial capacity. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish, as required, that it has a qualifying relationship with the Benclicim-y's employer abroad 
and that the Beneficiary has one year of employment in a managerial or executive capacity with a 
qualifying employer abroad in the three years preceding the filing of the petition. 
On appeal, the Petitioner submits additional evidence and asserts that the Director overlooked 
"concrete evidence of eligibility" in the record and erred by concluding that it did not show a 
qualifying relationship with "the foreign atliliate of Brazil." 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the Jiling of the 
petition, has been employed outside the United States for at least one year in a managerial or executive 
capacity, and seeks to enter the United States in order to continue to render managerial or executive 
services to the smne employer or to its subsidiary or aftiliate. Section 203(b)( I )(C) of the Act. 
The Form I-140, Immigrant Petition for Alien Worker, must include a statement trom an authorized 
otlicial of the petitioning United States employer which demonstrates that the beneticiary has been 
employed abroad in a managerial or executive capacity t()l' at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer has 
been doing business for at least one year. See 8 C.F.R. § 204.5(j)(3). 
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Matter~~ X-I- LLC 
II. QUALIFYING RELATIONSHIP 
The Director determined 
that the Petitioner did not establish that it has a qualifying relationship with 
the Beneficiary's foreign employer. 
To establish a "qualifying relationship," the Petitioner must show that the. Beneficiary's foreign 
employer and the proposed U.S. employer are the same employer (a U.S. entity with a foreign 
otlice) or related as a "parent and subsidiary'' or as "affiliates." See § 203(b )(I )(C) of the Act; see 
also 8 C.F.R. § 204.5U)(2) (providing definitions of the terms "affiliate" and "subsidiary"). The 
Petitioner must be part of a multinational organization, where "multinational" means that the 
qualifying entity, or its affiliate, or subsidiary, conducts business in two or more countries, one of 
which is the United States. See 8 C.F.R. § 204.5(j)(2). 
The Petitioner's supporting letter provided a list of the Beneficiary's prior employers with his dates 
of employment and job titles. The Petitioner indicated that from September 2013 until October 
2014, the Beneficiary was employed by ' in Brazil. 
None of the Beneficiary's other employment abroad fell within the three-year period preceding the 
tiling of the Form f-140, so the Petitioner must establish a qualifying relationship with one or both of 
these entities. 
Regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities. See. 
e.g., Maller of Church Scientology Inn, 19 I&N Dec. 593 (Comm'r 1988); lvfatter <?/'Siemens Me d. 
Sys., Inc., 19 l&N Dec. 362 (Comm'r 1986); Matter ql Hughes, 18 I&N Dec. 289 (Comm 'r 1982). 
Ownership refers to the direct or indirect legal right of possession of the assets of an entity with full 
power and authority to control; control means the direct or indirect legal right and authority to direct 
the establishment, management, and operations of an entity. Mauer qf Church Scientology Int"l, 19 
I&N Dec. at 595. 
At the time of filing , the Petitioner did not claim to have a qualifying relationship with 
or or submit any evidence related to these entities or their 
ownership. The Petitioner's articles of organization indicate that it has two members~ 
and and its federal tax returns indicate that these individuals each own 50 percent of 
the company. 
In a request for evidence (RFE), the Director asked the Petitioner to clearly identify the foreign 
entity with which it has a qualifying relationship and to provide evidence establishing that 
relationship. 
In response, the Petitioner once again listed the Beneficiary's various former employers in Brazil 
and stated that they were all "legal entities." The Petitioner went on to state that it "has been 
affiliated with with headquarters in Brazil, but [ 
w ]ith difterent 
ownership at this time." 
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Mauer of X-1- LLC 
The Director concluded that the Petitioner did not establish a qualif~ring relationship with the 
Beneficiary's foreign employer and emphasized that the record remained devoid of any evidence 
showing the existence a qualifYing entity abroad. On appeal, the Petitioner seems to rely on its 
previous claim that it was affiliated with a Brazilian company called at some 
point in the past. 
The Petitioner has not established that it is part of a multinational organization or that it has a 
qualifying relationship with the Beneficiary's last foreign employer or any other foreign entity. The 
Petitioner claims no common ownership or control with the two entities that purp011edly employed 
the Beneficiary in the three year period preceding the filing of the petition. Rather. it emphasizes 
that these companies are "legal entities." The Petitioner's belief that it need only establish that the 
foreign employer is a "legal entity" appears to be based on a misreading of the relevant statute. 
Further, although the Petitioner appears to claim that it was previously "affiliated with" a Brazilian 
company, it docs not state that this company employed the Beneficiary, and it 
concedes that the Petitioner and this company have different ownership. The Petitioner also claims 
on appeal that it "maintains business relationship with several ... entities and associates in BraziL" 
but any business relationships or associations not based on common ownership and control do not 
satisfy the qualifying relationship requirement as set forth in the statute, regulations, and relevant 
case law. 
The Petitioner cannot meet the requirements for this immigrant classification if it did not have a 
qualifying relationship with the Beneficiary's last foreign employer at the time of tiling and has no 
current qualifying relationship with any foreign entity. Accordingly, we will dismiss the appeal. 
III. EMPLOYMENT ABROAD 
The Director further found that, because the Petitioner did not establish a qualifying relationship 
with any entity abroad, it could not show that the Beneliciary had one year of managerial or 
executive employment 
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abroad with a qualil~'ing entity in the three years preceding the tiling of the 
petition. 
On appeal, the Petitioner re-states a job description provided in a previous letter in support of the 
petition in support of its claim that the Beneficiary has managerial experience with various legal 
entities in Brazil. However, as the Petitioner concedes that the Beneficiary's last employers abroad 
have no qualifying relationship with the petitioning company, none of the Beneficiary's former 
employment, regardless of the types of duties he performed, can be considering qualifying 
employment. Again, the Petitioner's understanding of what is deemed a qualifying relationship 
lacks proper emphasis on the critical elements of common ownership and control that must be shared 
between a beneficiary's employer abroad and the prospective U.S. employer. It is not sufficient to 
show he was managerial experience with an unrelated foreign· entity in Brazil. 
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The Director did not evaluate the Beneficiary's job duties or make a spec ilk finding that his duties were not managerial 
or executive as defined at section 10 l(a)(44) of the Act, 8 U.S.C. § 1101(a)(44). 
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Malter ofX-1- LLC 
The Petitioner has not established that the Beneficiary has the required one year of employment 
abroad with a qualifying entity in the three years preceding the filing of the petition. For this 
additional reason, the appeal will be dismissed. 
IV. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
Although not addressed in the Directlir's decision, we tlnd that the Petitioner did not submit 
sufficient evidence to establish that the Beneficiary's proffered position of "function manager" 
would be in a managerial or executive capacity. The Petitioner stated on the Fom1 1-140 that it 
operates a "specialized services" business with 10 employees. In its supporting letter, the Petitioner 
indicated that it is engaged in "Import and Export of goods & specialized services (Logistic and 
Trading consulting)," but the supporting evidence indicates that the Petitioner operates a teeth 
whitening business with several locations in shopping malls. 
We review the totality of the evidence when examining a beneficiary's proposed employment in a 
managerial or executive capacity, including the benetlcimy's job duties, the company's organizational 
structure, the duties of a beneficiary's subordinate employees, the presence of other employees who 
would relieve the benellciary ti·om perfixming operational duties, the nature of the business, and any 
other factors that will contribute to understanding a beneficiary's actual duties and role in the business. 
Although the Petitioner submitted a letter with several different iterations of the Beneficiary's proposed 
duties (which were described as both managerial specialized knowledge duties), all of the descriptions 
were vague and some were inconsistent with the apparent nature of the business, such as duties 
referencing an "engineering" department. FL111her, the Petitioner, apart trom indicating that it had 10 
employees, did not provide supporting evidence establishing th~ conipany's staftlng levels, 
organizational structure, or the number or type of subordinate employees the Beneficiary would 
supervise, and their duties and qualifications. As the Petitioner did not submit a detailed and consistent 
job description for the Beneficiary, consistently describe the nature of the business, or provide relevant 
infonnation regarding the company's structure and staffing. the totality of the evidence does not 
establish that the Petitioner would employ him in a managerial or execuiive capacity. 
V. CONCLUSION 
The appeal must be dismissed as the Petitioner has not established that it has a qualifying 
relationship with the Beneficiary's last employer abroad, that the Beneficiary has one year of 
employment abroad with a qualifying entity in the three years preceding the llling of the petition, or 
that he would be employed in a managerial or executive capacity in the United States. 
ORDER: The appeal is dismissed. 
Cite as Maller ofX-1- LLC, ID# 1028863 (AAO Mar. 8; 2018) 
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